Territory Hawai`i v. Kaupu

• Decision Date: 26 April 1940
• Docket Number: No. 2431.,2431.
• Citation: 35 Haw. 396
• Parties: THE TERRITORY OF HAWAII v. EDWIN KAUPU.
• Court: Hawaii Supreme Court

35 Haw. 396

THE TERRITORY OF HAWAII

v.EDWIN KAUPU.

No. 2431.

Supreme Court of the Territory of Hawai‘i.

Submitted February 20, 1940.

Decided April 26, 1940.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT SECOND CIRCUIT. HON. D. H. CASE, JUDGE.

Syllabus by the Court

In the trial of a person charged with involuntary manslaughter committed while violating a territorial statute, a county ordinance was admitted in evidence over objection of defendant. The ordinance was material, if at all, as proof of the general rules of the road and the issue, namely, whether or not the defendant was operating an automobile furiously or heedless of the safety of another and the failure of the court to so limit the purpose of the ordinance and its reception for all purposes is error.

While the court may properly instruct the jury that the general rule is that contributory negligence of one killed by reckless and negligent driving of an automobile will not of itself constitute a defense to a prosecution for such killing, yet contributory negligence of the deceased may be considered by the jury as bearing upon the proximate cause of death.

E. Vincent for appellant.

E. R. Bevins, County Attorney of Maui, and Wendell F. Crockett, Deputy County Attorney of Maui, for the Territory.

COKE, C. J., PETERS AND KEMP, JJ.

OPINION OF THE COURT BY COKE, C. J.

The appellant, Edwin Kaupu, was tried and convicted by a jury in the circuit court of the second judicial circuit upon indictment charging him with involuntary manslaughter as follows: “The Grand Jury of the Second Circuit of the Territory of Hawaii do present that EDWIN KAUPU at Kaluaaha, Molokai, in the County of Maui, Territory of Hawaii, on to-wit the 14th day of May 1938 without malice aforethought and without authority, justification or extenuation by law, did unlawfully and feloniously kill and slay a human being, to-wit, one Laurentina Brito, by unlawfully, to-wit, furiously and heedless of the safety of other driving and operating an automobile on a public highway at said Kaluaaha, thereby imminently endangering the personal safety of the said Laurentina Brito, and causing said automobile to collide with, strike, knock down and inflict injuries to and upon the said Laurentina Brito, from which injuries the said Laurentina Brito, on to-wit, the 14th day of May 1938, did die, and the said Edwin Kaupu did then, there and thereby commit manslaughter. Contrary to the form of the statute in such cases made and provided.”

The bill of exceptions by which the appellant comes to this court contains eighteen separate exceptions taken to the rulings of the trial court. Appellant has abandoned his exception number 16.

Section 5996, R. L. H. 1935, defines manslaughter as the killing of “a human being without malice aforethought, and without authority, justification or extenuation by law.”

Similar to the case of Ter. v. Yoshimura, ante, p. 324, the appellant is charged with the killing of the deceased while in the act of committing a violation of section 6280, R. L. H. 1935, which reads: “Whoever furiously or heedlessly of the safety of others, rides any horse or other animal, or drives or conducts any carriage, wagon, buggy, omnibus, cart, bicycle, automobile, motorcycle, locomobile, or other vehicle, and thereby imminently endangers the personal safety of any person, shall be punished by a fine,” etc.

During the trial the court, over the objection of defendant, permitted the government to introduce in evidence a certified copy of section 23 of the 1932 Revised Traffic Code of the County of Maui. This ordinance reads: “Any person operating a vehicle on the public highways of the County of Maui shall operate the same in a careful and prudent manner and at a rate of speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway; no person shall operate a vehicle upon a public highway at such a rate of speed as to endanger the life, limb or property of any person.”

It will be observed that there is a material distinction between the provisions of the territorial statute and the county ordinance. In some respects at least the latter is more comprehensive than the former. The statute makes it a crime to drive an automobile furiously or heedless of the safety of others, thereby imminently endangering the personal safety of any person. The ordinance requires that a person driving a vehicle on any public highway of the County of Maui shall operate the same in a careful and prudent manner, at a rate of speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway, and prohibits the operation of a vehicle upon a public highway at such a rate of speed as to endanger the life, limb or property of any person. The operating of a vehicle in such a manner as to endanger property is an element entirely foreign to the territorial statute. The county ordinance was neither pleaded nor otherwise referred to in the indictment. If...